# ELECTROSTEEL STEELS LIMITED v. UNION OF INDIA AND ORS. ETC

- **Citation:** [2021] 14 S.C.R. 863
- **Court:** Supreme Court of India
- **Decided:** 2021-12-09
- **Case number:** Civil Appeal Nos. 7576-7577 of 2021
- **Bench:** Indira Banerjee, J. K Maheshwari
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/electrosteel-steels-limited-v-union-of-india-and-ors-etc-35372
- **Pages:** 32

## Headnote

Environment Protection Act, 1986 - Ex post facto
environmental clearance - In the instant case, Appellant applied to
Ministry of Environment, Forest and Climate Change, Government
of India for grant of Environmental Clearance (EC) to establish
steel plant at Bokara District - Appellant stated in its application
that no forest land was involved in the project - After obtaining
EC, the Appellant applied to the JSPCB, for grant of 'Consent to
Establish' (CTE) under the Air (Prevention and Control of Pollution)
Act, 1981 - The JSPCB granted CTE to the Appellant to establish
steel plant - Even though CTE was granted to the Appellant to
establish a steel plant at Bokaro District, the Appellant established
it 5.3 Kms away from the permitted site - CTE was extended from
time to time - However, JSPCB issued an order revoking EC of the
appellant on the ground that appellant had encroached upon forest
land and shifted its location there by violating the conditions of EC
- Appellant filed writ petition before High Court in which High
Court passed an interim order staying the operation, implementation
and execution of the order of JSPCB which was extended time to
time - In the meanwhile, Appellant applied for ex post facto Forest
Clearance (FC) which was also claimed before the High Court -
However, after final hearing, High Court passed the order of
discontinuing the earlier interim orders - On Appeal, Held: The
1986 Act does not prohibit ex post facto Environmental Clearance
- Ex post facto environmental clearance should not however be
granted routinely, but in exceptional circumstances taking into
account all relevant environmental factors - Ex post facto approval
should not be withheld only as a penal measure - In present facts,
steel plant was not started without EC or consent of JSPCB -
Appellant had asserted that no part of steel plant is in any forest
which MoEF had also confirmed - Appellant had duly applied for
ex post fact forest clearance approval without prejudice to its rights
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[2021] 14 S.C.R.
and contentions that its steel plant is not on forest land - An
establishment contributing to the economy and providing livelihood
to hundreds of people should not be closed down for technical
irregularity of shifting its site without prior EC - JSPCB was directed
to take action on the application of the appellant for revised EC in
accordance with law - High Court erred in vacating interim orders
which had been in force for two years.
Allowing the appeals, the Court
HELD: 1. The question is whether an establishment
contributing to the economy of the country and providing
livelihood to hundreds of people should be closed down for the
technical irregularity of shifting its site without prior
environmental clearance, without opportunity to the
establishment to regularize its operation by obtaining the requisite
clearances and permissions, even though the establishment may
not otherwise be violating pollution laws, or the pollution, if any,
can conveniently and effectively be checked. The answer has to
be in the negative. [Para 82][885-D-E]
2. The 1986 Act does not prohibit ex post facto
Environmental Clearance. Some relaxations and even grant of
ex post facto EC in accordance with law, in strict compliance with
Rules, Regulations Notifications and/or applicable orders, in
appropriate cases, where the projects are in compliance with, or
can be made to comply with environment norms, is in over view
not impermissible. The Court cannot be oblivious to the economy
or the need to protect the livelihood of hundreds of employees
and others employed in the project and others dependent on the
project, if such projects comply with environmental norms.
[Para 84][885-G-H; 886-A-B]
3. Ex post facto environmental clearance should not
however be granted routinely, but in exceptional circumstances
taking into account all relevant environmental factors. Where
the adverse consequences of ex post facto approval outwe

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[2021] 14 S.C.R. 863
863
ELECTROSTEEL STEELS LIMITED
v.
UNION OF INDIA AND ORS. ETC.
(Civil Appeal Nos. 7576-7577 of 2021)
DECEMBER 09, 2021
[INDIRA BANERJEE AND J. K MAHESHWARI, JJ.]
Environment Protection Act, 1986 - Ex post facto
environmental clearance - In the instant case, Appellant applied to
Ministry of Environment, Forest and Climate Change, Government
of India for grant of Environmental Clearance (EC) to establish
steel plant at Bokara District - Appellant stated in its application
that no forest land was involved in the project - After obtaining
EC, the Appellant applied to the JSPCB, for grant of 'Consent to
Establish' (CTE) under the Air (Prevention and Control of Pollution)
Act, 1981 - The JSPCB granted CTE to the Appellant to establish
steel plant - Even though CTE was granted to the Appellant to
establish a steel plant at Bokaro District, the Appellant established
it 5.3 Kms away from the permitted site - CTE was extended from
time to time - However, JSPCB issued an order revoking EC of the
appellant on the ground that appellant had encroached upon forest
land and shifted its location there by violating the conditions of EC
- Appellant filed writ petition before High Court in which High
Court passed an interim order staying the operation, implementation
and execution of the order of JSPCB which was extended time to
time - In the meanwhile, Appellant applied for ex post facto Forest
Clearance (FC) which was also claimed before the High Court -
However, after final hearing, High Court passed the order of
discontinuing the earlier interim orders - On Appeal, Held: The
1986 Act does not prohibit ex post facto Environmental Clearance
- Ex post facto environmental clearance should not however be
granted routinely, but in exceptional circumstances taking into
account all relevant environmental factors - Ex post facto approval
should not be withheld only as a penal measure - In present facts,
steel plant was not started without EC or consent of JSPCB -
Appellant had asserted that no part of steel plant is in any forest
which MoEF had also confirmed - Appellant had duly applied for
ex post fact forest clearance approval without prejudice to its rights
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and contentions that its steel plant is not on forest land - An
establishment contributing to the economy and providing livelihood
to hundreds of people should not be closed down for technical
irregularity of shifting its site without prior EC - JSPCB was directed
to take action on the application of the appellant for revised EC in
accordance with law - High Court erred in vacating interim orders
which had been in force for two years.
Allowing the appeals, the Court
HELD: 1. The question is whether an establishment
contributing to the economy of the country and providing
livelihood to hundreds of people should be closed down for the
technical irregularity of shifting its site without prior
environmental clearance, without opportunity to the
establishment to regularize its operation by obtaining the requisite
clearances and permissions, even though the establishment may
not otherwise be violating pollution laws, or the pollution, if any,
can conveniently and effectively be checked. The answer has to
be in the negative. [Para 82][885-D-E]
2. The 1986 Act does not prohibit ex post facto
Environmental Clearance. Some relaxations and even grant of
ex post facto EC in accordance with law, in strict compliance with
Rules, Regulations Notifications and/or applicable orders, in
appropriate cases, where the projects are in compliance with, or
can be made to comply with environment norms, is in over view
not impermissible. The Court cannot be oblivious to the economy
or the need to protect the livelihood of hundreds of employees
and others employed in the project and others dependent on the
project, if such projects comply with environmental norms.
[Para 84][885-G-H; 886-A-B]
3. Ex post facto environmental clearance should not
however be granted routinely, but in exceptional circumstances
taking into account all relevant environmental factors. Where
the adverse consequences of ex post facto approval outweigh
the consequences of regularization of operation of an industry by
grant of ex post facto approval and the industry or establishment
concerned otherwise conforms to the requisite pollution norms,
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ex post facto approval should be given in accordance with law, in
strict conformity with the applicable Rules, Regulations and/or
Notifications. Ex post facto approval should not be withheld only
as a penal measure. The deviant industry may be penalised by an
imposition of heavy penalty on the principle of 'polluter pays'
and the cost of restoration of environment may be recovered
from it. [Para 87][891-G-H; 892-A-B]
4. This Court held that the High Court erred in passing the
impugned order, vacating interim orders which had been in force
for two years. The impugned order is not in conformity with the
principle of proportionality. This is not a case where the steel
plant was started without environmental clearance or consent of
JSPCB. The Appellant had applied for and obtained environmental
clearance to set up an integrated steel plant (3MTPA) on 1350
acres of land at Mauza South Parbatpur, as observed above.
Environmental Clearance had been granted on 21st February 2008
and Consent to Operate had been granted by JSPCB on 5th May
2008. In passing the impugned order the High Court overlooked
the consequences of closure of an integrated steel plant with a
work force of 300 regular and 700 contractual workers. The High
Court also failed to appreciate that the judgment of this Court in
Alembic Pharmaceuticals was distinguishable on facts.
Furthermore, continuance of the interim orders allowing
operation of an industrial establishment or even the grant of
revised EC to the industrial establishment cannot stand in the
way of action against that establishment for contraventions,
including the imposition of penalty, on the principle 'polluter pays'.
JSPCB is directed to take a decision on the application of the
appellant for revised EC in accordance with law within three
months. [Paras 88, 94, 95][892-B-D; 893-E-F; 894-A]
Indian Council for Enviro-Legal Action and Ors. v.
Union of India and Ors. (1996) 3 SCC 212 : [1996] 2
SCR 503 Alembic Pharmaceuticals Ltd. v. Rohit
Prajapati and Others 2020 SCC OnLine SC 347;
Lafarge Umiam Mining Private Limited v. Union of India
(2011) 7 SCC 338 : [2011] 7 SCR 954 - referred to.
ELECTROSTEEL STEELS LIMITED v. UNION OF INDIA
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Case Law Reference
[1996] 2 SCR 503
referred to
Para 47
[2011] 7 SCR 954
referred to
Para 85
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 75767577 of 2021.
From the Judgment and Order dated 16.09.2020 of the High Court
of Jharkhand at Ranchi in W.P. (C) Nos.4850 and 1873 of 2018.
Harish N. Salve, Krishnan Venugopal, Sr. Advs., Ms. Anuradha
Dutt, Ms. Suman Yadav, Ms. Nikhita Suri, Dhruv Nayar, Kunal Dutt,
Ninad Laud, Anish Kapur, Ms. B. Vijayalakshmi Menon, Ivo D'Costa,
Aditya Pratap Singh, Advs. for the Appellant.
Vikramjit Banerjee, ASG, Gurmeet Singh Makker, Shailesh
Madiyal, Ketan Paul, Ms. Divyanshi H. Rathi, Raghavendra S. Srivatsa,
Ravi Shankar Dvivedi, Kumar Anurag Singh, Saurabh Jain, Ms. Tulika
Mukherjee, Zain A. Khan, Shwetank Singh, Ms. Aastha Shrestha, Rajesh
R. Dubey, Santosh Mishra, Advs. for the Respondents.
The Judgment of the Court was delivered by
INDIRA BANERJEE, J.
1. Leave granted.
2. These Appeals are against an order dated 16th September 2020
passed by a Single Bench of the High Court of Jharkhand in W.P. (C)
No.1873 of 2018 and W.P. (C) No. 4850 of 2018, discontinuing the interim
orders earlier passed by the High Court, allowing the Appellant to operate
its unit under the supervisory regulatory control of the Respondent -
Jharkhand State Pollution Control Board, hereinafter referred to as
"JSPCB", which had been in force for over two years.
3. The Appellant owns and runs a 1.5 MTPA integrated steel
plant in Bokaro District in Jharkhand. The said steel plant in Bokaro,
which employs 3,000 regular employees and 7000 contractual employees,
produced steel worth Rs.4,200 crores in the financial year 2019-20.
4. The Appellant claims that about 30,000 persons other than those
actually employed by the steel plant as regular or contractual employees
depend on the steel plant for their livelihood.
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5. Corporate Insolvency Resolution Process (CIRP) had
commenced against the Appellant under the Insolvency and Bankruptcy
Code 2016. As successful Resolution Applicant, Vedanta Ltd. took over
the Appellant on or about 4th June 2018 upon payment of Rs.5,320 crores
for discharge of its debts.
6. Pollution and consequential deterioration of environment has
been assuming alarming proportions, and has become a cause of universal
concern. Fumes, smoke, emission of green house gases by use of motors
and machines and operation of mills, factories and plants cause
environmental degradation.
7. Under the aegis of the United Nations discussions and
deliberations have been held to protect and improve environment and
prevent pollution.
8. In 1972, the United Nations Conference on the Human
Environment was convened in Stockholm to work out ways and means
to protect and improve the environment. In course of deliberations, it
was felt that there was need to enact law to tackle environmental pollution.
India participated in the conference and strongly voiced environmental
concerns.
9. The Environment (Protection) Act, 1986, hereinafter referred
to as "the 1986 Act", has been enacted as a consequence of decisions
taken at the United Nations Conference on the Human Environment
held in Stockholm in June, 1972.
10. The statement of objects and reasons for enactment of the
1986 Act declares that the Act has been prompted by concern over
environment, that has grown the world over, since the sixties.
11. Sub-Section (1) of Section 3 of the 1986 Act empowers the
Central Government to take all such measures as it might deem necessary
or expedient for the purpose of protecting and improving the quality of
the environment and preventing, controlling and abating environmental
pollution.
12. Sub-section (2) of Section 3 of the 1986 Act enables the Central
Government to take, inter alia, the following measures:
"(i) co-ordination of actions by the State Governments, officers
and other authorities-
(a) under this Act, or the rules made thereunder; or
ELECTROSTEEL STEELS LIMITED v. UNION OF INDIA
[INDIRA BANERJEE, J.]
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(b) under any other law for the time being in force which
is relatable to the objects of this Act;
(ii) planning and execution of a nation-wide programme for
the prevention, control and abatement of environmental
pollution;
(iii) laying down standards for the quality of environment in
its various aspects;
(iv) laying down standards for emission or discharge of
environmental pollutants from various sources whatsoever:
Provided that different standards for emission or discharge
may be laid down under this clause from different sources
having regard to the quality or composition of the emission
or discharge of environmental pollutants from such sources;
(v) restriction of areas in which any industries, operations or
processes or class of industries, operations or processes shall
not be carried out or shall be carried out subject to certain
safeguards;
(vi) laying down procedures and safeguards for the prevention
of accidents which may cause environmental pollution and
remedial measures for such accidents;
(vii) laying down procedures and safeguards for the handling
of hazardous substances;
(viii) examination of such manufacturing processes, materials
and substances as are likely to cause environmental pollution;
(ix) carrying out and sponsoring investigations and research
relating to problems of environmental pollution;
(x) inspection of any premises, plant, equipment, machinery,
manufacturing or other processes, materials or substances
and giving, by order, of such directions to such authorities,
officers or persons as it may consider necessary to take steps
for the prevention, control and abatement of environmental
pollution;
(xi) establishment or recognition of environmental laboratories
and institutes to carry out the functions entrusted to such
environmental laboratories and insitutes under this Act;
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(xii) collection and dissemination of information in respect of
matters relating to environmental pollution;
(xiii) preparation of manuals, codes or guides relating to the
prevention, control and abatement of environmental pollution;
(xiv) such other matters as the Central Government deems
necessary or expedient for the purpose of securing the
effective implementation of the provisions of this Act."
13. Sub-section (3) of Section 3 of the 1986 Act provides as follows:
"The Central Government may, if it considers it necessary or
expedient so to do for the purposes of this Act, by order,
published in the Official Gazette, constitute an authority or
authorities by such name or names as may be specified in the
order for the purpose of exercising and performing such of
the powers and functions (including the power to issue
directions under Section 5) of the Central Government under
this Act and for taking measures with respect to such of the
matters referred to in sub-section (2) as may be mentioned in
the order and subject to the supervision and control of the
Central Government and the provisions of such order, such
authority or authorities may exercise the powers or perform
the functions or take the measures so mentioned in the order
as if such authority or authorities had been empowered by
this Act to exercise those powers or perform those functions
or take such measures."
14. Subject to the provisions of the 1986 Act, the Central
Government has power under sub-section (1) of section 3 to take all
such measures as it deems necessary or expedient for the purpose of
protecting and improving the quality of the environment and preventing,
controlling and abating environmental pollution.
15. Section 5 of the 1986 Act provides that notwithstanding anything
contained in any other law, but subject to the provisions of the 1986 Act,
the Central Government may, in exercise of its powers and performance
of its functions under the 1986 Act, issue directions in writing to any
person, officer or any authority and such person, officer or authority
shall be bound to comply with such directions.
16. In exercise of powers conferred by Sub-Section (1) and clause
(v) of sub-section (2) of Section 3 of the 1986 Act read with Rule 5(3)(d)
ELECTROSTEEL STEELS LIMITED v. UNION OF INDIA
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of the Environment (Protection) Rules, 1986 the Central Government
issued the Environmental Impact Assessment Notification dated 27th
January 1994 directing that on and from the date of publication of the
said notification in the Official Gazette, expansion or modernisation of
any activity or a new project listed in Schedule I of the Notification shall
not be undertaken in any part of India, unless it has been accorded
Environmental Clearance (EC) by the Central Government in accordance
with the procedure specified in the Notification.
17. Under Clause (2)(I) of the said Notification, any person who
desires to undertake any new project listed in Schedule I is required to
submit an application to the Secretary, Ministry of Environment and
Forests (MoEF), New Delhi in the pro forma specified in Schedule II,
accompanied by a project report which is to include the EIA
(Environmental Impact Assessment) Report /Environment Management
Plan (EMP) prepared in accordance with the guidelines issued by MoEF.
Another Environmental Impact Notification was issued in 2006, for grant
of Terms and Environmental Clearance inter alia for projects which
had started work on site.
18. The EIA Report submitted with the application of the project
proponent is to be evaluated and assessed by the Impact Assessment
Agency (IAA), that is MoEF, and if deemed necessary, it may consult a
Committee of Experts constituted in the manner prescribed in Schedule
III. The Committee of Experts shall have full right of entry and inspection
of the site. The Impact Assessment Agency is to prepare a set of
recommendations based on technical assessment of documents and data,
furnished by the project proponent, supplemented by data collected during
visits to sites, interaction with the affected population and environmental
groups, if necessary. The summary of the reports, the recommendations
and the conditions, subject to which EC is given shall, subject to public
interest, be made available to the parties concerned or environmental
groups on request. The IAA may solicit comments of the public within
the specified period by arranging public hearings for that purpose. The
public shall, subject to public interest, be provided access, to the summary
of the EIA Report/Environment Management Plan (EMP). The
clearance granted for commencement of the construction or operation
of the plant, is to be valid for five years. Clause IV of the Environmental
Impact Assessment Notification provides for the monitoring of the
implementation of the conditions of EC and/or the recommendations
and conditions laid down by IAA.
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19. A minor amendment was made to the said Environmental
Impact Assessment Notification dated 27th January 1994, by a
Notification dated 10th April 1997, which prescribes a detailed procedure
for public hearing.
20. By a notification being S.O. 327(E), dated 10th April 2001,
published in the Gazette of India, Extra., Pt.II, Sec.3(ii), dated 12th April
2001, the Central Government has delegated the powers vested in it
under Section 5 of the 1986 Act, to the Chairpersons of the respective
State Pollution Control Boards/Committees to issue directions to any
industry or any local or other authority for the violations of the standards
and rules relating to biomedical waste, hazardous chemicals, industrial
solid waste and municipal solid waste including plastic waste notified
under the Environment (Protection) Act, 1986 subject to the condition
that the Central Government may revoke such delegation of powers or
may itself invoke the provisions of Section 5 of the said Act, if in the
opinion of the Central Government such a course of action is necessary
in the public interest.
21. On or about 8th January 2007, the Appellant applied to the
Ministry of Environment, Forest and Climate Change, Government of
India, hereinafter referred to as "MoEF&CC" for grant of EC to establish
3 MTPA integrated steel plant at Mauza South Parbatpur of
Chandankiyari Block of Bokaro District.
22. In its application, the Appellant stated that 1350 acres of land
were required for establishing the said plant at the Mauza South Parbatpur
of Chandankiyari Block of Bokaro District and that no forest land was
involved in the project.
23. By a letter No. F.No.J-11011/137/2006-1A-II (i) dated 21st
February 2008, the Appellant was granted EC. After obtaining EC, the
Appellant applied to the JSPCB, for grant of 'Consent to Establish' (CTE)
under the Air (Prevention and Control of Pollution) Act, 1981, hereinafter
referred to as the Air Pollution Act, and Water (Prevention and Control
of Pollution) Act 1974, hereinafter referred to as the Water Pollution
Act.
24. On 5th May 2008, the JSPCB granted CTE to the Appellant to
establish the 3 MTPA integrated steel plant at Mauza South Parbatpur
of Chandankiyari Block of Bokaro District. The CTE was granted on
the basis of the EC granted by the MoEF&CC.
ELECTROSTEEL STEELS LIMITED v. UNION OF INDIA
[INDIRA BANERJEE, J.]
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25. The CTE was extended from time to time till 4th May 2011.
Even though CTE was granted to the Appellant to establish a steel plant
at Mauza South Parbatpur of Chandankiyari Block of Bokaro District,
the Appellant established steel plant in Mauza Bhagabandh in the Chas
Block in Bokaro District, 5.3 Kms away from the site for which EC and
CTE had been granted.
26. A Circular No.J-11013/41/2006-1A.2(i) dated 22nd January,
2010 was issued by the Ministry of Environment and Forest (MoEF) of
the Government of India which provided as follows:
"Instances have come to the notice of this Ministry wherein
the project proponents have changed the project site after
the said project has been granted environmental clearance
or after the public hearing has been held. The project
proponents have approached this Ministry to revalidate the
environmental clearance so granted without undergoing afresh
the procedure prescribed for obtaining environmental
clearance. The matter has been considered in the ministry.
The change in project site would lead to change in project
affected people as well as the change in study area and the
impact zone. As such the Environment Impact Assessment
Report and Public Hearing conducted for a particular
location cannot be taken valid for the changed location.
Accordingly, it has been decided that any shift in project site
location after holding of public hearing will be deemed to be
a new proposal and will be appraised afresh as per the
procedure prescribed under EIA Notification 2006 provided
the respective Expert Appraisal Committee is satisfied that
the shift is so minor as to have no change in EIA/EMP, duly
recorded in the minutes and prior approval of advisor (Incharge)/SEIAA for Category 'A'/Category 'B' projects
respectively is obtained for not holding the public hearing
for the changed location afresh.
This issues with the approval of the Competent Authority."
27. By a communication being Reference No.1142 dated 4th May
2010, the District DFO (District Forest Officer) Bokaro requested JSPCB
to take action against the Appellant for setting up its integrated steel
plant on forest land in Mauza Bhagabandh of Chas Block of Bokaro
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District, in violation of the Forest Conservation Act 1980 and Indian
Forest Act 1927. The DFO, Bokaro reported encroachment of 220.88
acres of notified forest land by the Appellant to JSPCB.
28. It appears that cases had been initiated against the officials of
the Appellant under the Indian Forest Act, 1927, Forest Conservation
Act, 1980 and the Bihar Public Land Encroachment Act, 1955 which
have been quashed by the Jharkhand High Court, by an order dated 25th
January 2011.
29. On or about 23rd September 2010 the Appellant applied for
Consent to Operate (CTO) under the Air Pollution Act and the Water
Pollution Act for its 350 m3 blast furnace. Later on 9th September 2011,
the Appellant applied for CTO in respect of its entire plant.
30. By a letter dated 2nd December 2011, addressed to the
Appellant, the MoEF confirmed that the lay out of the Appellant's 3
MTPA Integrated Steel Plant was well within the Environment Impact
Area and that the affected people had the opportunity to participate in a
public hearing.
31. By letter dated 18th May 2012, the JSPCB reported
encroachment by the Appellant upon forest land and alleged violation by
the Appellant of the Forest Conservation Act, 1980 to the MoEF&CC,
New Delhi. The MoEF&CC was also informed of the unauthorized
shifting of the integrated steel plant from Mauza South Parbatpur of
Chandankiyari Block of Bokaro District to Mauza Bhagabandh of Chas
Block of Bokaro District in violation of the conditions of Environment
Clearance granted by the MoEC&CC.
32. Pursuant to the report of JSPCB, MoEF&CC issued a Show
Cause Notice dated 6th June 2012 to the Appellant under Section 5 of
the 1986 Act. The Appellant submitted its reply to the Show Cause Notice
on 20th June 2012.
33. On 10th September 2012, the Appellant once again applied to
JSPCB for CTO for one year under the Water Pollution Act and Air
Pollution Act. According to the Appellant, several reminders were sent
to MoEF&CC requesting MoEF&CC to intimate JSPCB of the outcome
of the Show Cause Notice issued to the Appellant. However, JSPCB
has not been informed of the decision of MoEF&CC.
ELECTROSTEEL STEELS LIMITED v. UNION OF INDIA
[INDIRA BANERJEE, J.]
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34. The Appellant filed a Writ Petition being W.P. No.2247/2012
in the Jharkhand High Court for orders on JSPCB to grant the Appellant
CTO. The said writ petition was disposed of by an order dated 5th
November 2012, the operative part whereof is set out hereinbelow:-
"Respondent 1& 2 to consider the petitioner's application
and as assured by them, if so required, give an opportunity of
hearing to the petitioners and after taking into consideration
the facts and provisions of law and the related decisions, shall
dispose of the petitioner's application within five weeks from
the date of receipt/production of a copy of this order."
35. On or about 27th November 2013, the application of the
Appellant for CTO was rejected on the ground that the Appellant had
shifted the site of its steel Plant and had encroached upon forest land in
violation of the Forest Conservation Act, 1980. The operative part of the
order dated 27th November 2013 reads:-
"at this stage subject to final outcome of the decision of
MoEF&CC, New Delhi with respect to show cause notice dated
6.6.2012, we dispose the application for CTO in exercise of
power conferred u/s 21(4) of Air (Prevention and Control of
Pollution) Act, 1981 & u/s 25(4) of Water (Prevention and
Control of Pollution) Act, 1974 by "refusing" the CTO to the
unit for the reason aforesaid."
36. The Appellant filed an application for contempt being Contempt
Case (C) No.939 of 2013 in W.P.(C) No.2247 of 2012 in the Jharkhand
High Court. Pursuant to an order dated 29th November 2013 in the
Contempt Petition, the JSPCB disposed of the applications for grant of
CTO to the Appellant.
37. By a letter dated 17th April 2013, the MoEF&CC had called
for a status report from the State of Jharkhand in respect of forest land
encroached by the Appellant. The Forest Department submitted a report
to the MoEF&CC on 13th May, 2014.
38. Thereafter, by a letter dated 20th October 2014, the MoEF&CC,
New Delhi directed the Department of Forest, Environment and Climate
Change, Government of Jharkhand to take action against the Appellant
for violating the provisions of Indian Forest Act, 1927 and Forest
Conservation Act, 1980. In compliance with the aforesaid order, JSPCB
directed the Appellant to close down its plant under Section 31(A) of the
Air Pollution Act and Section 33(A) of Water Pollution Act.
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39. By a Memo No.521 dated 6th February 2015, the Department
of Forest, Environment and Climate Change, Government of Jharkhand
directed the DGP, Jharkhand, Ranchi and the Deputy Commissioner,
Bokaro to take action against the Appellant in the light of the letter dated
20th October, 2014 of the MoEF&CC, Government of India and to submit
an action taken report.
40. The aforesaid order of JSPCB was challenged by the Appellant
by filing a Writ Petition being WP(C) No.2033 of 2015 in the Jharkhand
High Court. By an order dated 5th February 2016 the High Court set
aside the order of the JSPCB holding that the same had been passed in
violation of principles of natural justice. The High Court however, held
that JSPCB would be at liberty to pass an order in accordance with law
after giving the Appellant an opportunity of hearing.
41. Thereafter, a show cause notice dated 25th April 2016, was
issued to the Appellant. The Appellant replied to the show cause notice
on 28th September 2016, contending that the Appellant had not set up its
plant on any forest land and that all pollution control measures had been
taken. However, the Principal Chief Conservator of Forests (PCCF),
Jharkhand had by a communication No.2966 dated 8th August 2016
informed JSPCB that the Appellant had encroached forest land.
Thereafter JSPCB once again called upon the Appellant to show cause
in the light of information provided by the PCCF, Jharkhand. The
Appellant by a letter dated 28th September 2016 reiterated that there
was no forest land in the plant premises.
42. JSPCB passed an order No.B-319 dated 13th February 2017
disposing of the show cause notice in the light of the direction dated 5th
February 2016 of the Jharkhand High Court and the applications for
CTO. JSPCB granted CTO to the Appellant which was valid till 31st
December, 2017.
43. The MoEF&CC and the State Environment Impact Assessment
Authorities had, in the meanwhile been receiving proposals under the
Environment Impact Assessment Notification, 2006 for grant of Terms
of Reference and Environmental Clearance for projects which had started
the work on site, expanded the production beyond the limit of
environmental clearance or changed the product mix without obtaining
prior environmental clearance.
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44. The MoEF&CC deemed it necessary that all entities not
complying with the environmental regulation under Environment Impact
Assessment Notification, 2006, be brought to comply with the
environmental laws in expedient manner, for the purpose of protecting
and improving the quality of the environment and reducing environmental
pollution.
45. The MoEF&CC deemed it necessary to bring such projects
and activities in compliance with the environmental laws at the earliest
point of time, rather than leaving them unregulated and unchecked, which
would be more damaging to the environment.
46. In furtherance of this objective, the Government of India
deemed it essential to establish a process for appraisal of cases of violation
of norms, and prescribing such adequate environmental safeguards that
would deter violation of the provisions of Environment Impact Assessment
Notification, 2006 and ensure that damage to environment was adequately
compensated for.
47. In Indian Council for Enviro-Legal Action and Ors. v.
Union of India and Ors.1, the Supreme Court analyzed relevant
provisions of environmental laws and concluded that damages might be
recovered under the provisions of the 1986 Act, inter alia, to implement
measures that were necessary or expedient for protecting and promoting
the environment. This Court affirmed that the power of the Central
Government under Section 3 of the 1986 Act was wide and included the
power to prohibit an activity, close an industry, direct to carry out remedial
measures, and wherever necessary impose the cost of remedial measures
upon the offending industry. The question of liability of the respondents
to defray the costs of remedial measures could also be looked into from
the principle "polluter pays."
48. In exercise of power under Section 3(1) and Section 3(2)(v)
of the 1986 Act read with Rule 5(3)(d) of the Environment (Protection)
Rules, 1986, the Central Government has issued a Notification being
S.O. 804(E) dated 14th March 2017 which provides for grant of ex post
facto EC for project proponents who have commenced, continued or
completed a project without obtaining EC under the 1986 Act or the EIA
notification issued under it.
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49. Paragraphs 3, 4 and 5 of the said notification, read as follows:
"(3) In cases of violation, action will be taken against the
project proponent by the respective State or State Pollution
Control Board under the provisions of section 19 of the
Environment (Protection) Act, 1986 and further, no consent
to operate or occupancy certificate will be issued till the
project is granted the environmental clearance.
(4) The cases of violation will be appraised by respective sector
Expert Appraisal Committees constituted under sub- section
(3) of Section 3 of the Environment (Protection) Act, 1986
with a view to assess that the project has been constructed at
a site which under prevailing laws is permissible and
expansion has been done which can be run sustainably under
compliance of environmental norms with adequate
environmental safeguards; and in case, where the finding of
the Expert Appraisal Committee is negative, closure of the
project will be recommended along with other actions under
the law.
(5) In case, where the findings of the Expert Appraisal
Committee on point at sub-para(4) above are affirmative, the
projects under this category will be prescribed the appropriate
Terms of Reference for undertaking Environment Impact
Assessment and preparation of Environment Management
Plan. Further, the Expert Appraisal Committee will prescribe
a specific Terms of Reference for the project on assessment
of ecological damage, remediation plan and natural and
community resource augmentation plan and it shall be
prepared as an independent chapter in the environment impact
assessment report by the accredited consultants. The collection
and analysis of data for assessment of ecological damage,
preparation of remediation plan and natural and community
resource augmentation plan shall be done by an environmental
laboratory duly notified under Environment (Protection) Act,
1986, or a environmental laboratory accredited by National
Accreditation Board for Testing and Calibration Laboratories
or a laboratory of a Council of Scientific and Industrial
Research institution working in the field of environment."
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50. On or about 24th August 2017, the Appellant applied for CTO
for five years. On 13th November 2017, JSPCB issued a Show Cause
Notice to the Appellant pointing out alleged contraventions of the
conditions of Consent to Operate (CTO) earlier granted to the Appellant.
The Appellant was called upon to show cause whether conditions of the
CTO had been contravened while the application of the Appellant for
CTO for five year was pending.
51. On 23rd November 2017, the Appellant submitted its online
reply to the Show Cause Notice showing compliance of the conditions
of the CTO.
52. By a communication No.2105 dated 18th December 2017
JSPCB requested MoEF&CC to inform JSPCB of the decision on the
show cause notice issued to the Appellant under Section 5 of the 1986
Act for revocation of the EC for non compliance of the conditions for
grant of EC for the integrated plant at Parbatpur, Jharkhand.
53. Aggrieved by the failure of JSPCB to issue/renew the CTO
to the Appellant, pursuant to its application made on 24th August 2017,
the Appellant filed a writ petition being W.P.(C) No. 1873 of 2018 in the
Jharkhand High Court on or about 12th April 2018 seeking directions on
the JSPCB to issue CTO to the Appellant.
54. By an order dated 16th July 2018, the High Court directed the
JSPCB to take a final decision on the application of renewal/grant of
CTO filed by the Appellant on 24th August 2017 within the time stipulated
in the said order.
55. The High Court further passed an interim order directing that
the Appellant be allowed to operate its unit under the supervisory and
regulatory control of the JSPCB, who might carry out periodical check
as to adherence by the Appellant of pollution control laws.
56. JSPCB passed an order dated 21st August, 2018, rejecting at
that stage the request of the Appellant for CTO, subject to the decision
of MoEF&CC on the show cause notice issued to the appellant. The
operative part of the said order is set out hereinbelow:
"at this stage subject to final outcome of the decision of
MoEF&CC, New Delhi with respect to show cause notice dated
6.6.2012, we dispose the application for CTO in exercise of power
conferred u/s 21(4) of Air (Prevention and Control of Pollution)
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Act, 1981 & u/s 25(40 of Water (Prevention and Control of pollution)
Act, 1974 by "refusing" the CTO to the unit for the reason
aforesaid."
57. The Appellant, thereafter approached the High Court with a
prayer for amendment of Writ Petition No.1873 of 2018. By an order
dated 25th August 2018, the High Court allowed the application for
amendment of the Writ Petition and directed the respondent to file their
response to the amended writ petition. The High Court further directed:-
"10. So far as interim relief is concerned, this court finds
that the order passed by the respondent-Jharkhand State
Pollution Control Board dated 23.08.2018 appears to be
directly dependent on the final decision which is yet to be
taken by the Ministry of Environment, Forest & Climate
Change on the show cause issued to the petitioner as back as
in the year 2012. As per the submission made by the counsel
appearing on behalf of Union of India, they are shortly going
to take a final decision in the matter after hearing the
petitioner. Accordingly the operation, implementation and
execution of the order dated 23.08.2018 passed by Jharkhand
State Pollution Control Board is hereby stayed till 27.09.2018
and the interim order dated 16.07.2018 is hereby extended
till 27.09.2018.
11. So far as decision of the Ministry of Environment, Forest
& Climate Change are concerned, considering the fact that
the unit of the petitioner is running unit and large number of
employees are working in this unit of the petitioner, this court
consider it appropriate that the issue regarding the
environmental clearance of the petitioner should be decided
at the earliest.
12. It is further observed that it is open to the petitioner to
approach the Union of India with their proposal/ application
for regularization of the alleged violation, without prejudice
to their rights (including right, title, interest, possession and
nature of property of the petitioner) and advance submissions
before the respondent authority of Union of India pursuant
to the show cause notice issued to them dated 6.6.2012 and
the appropriate authority may, if possible, simultaneously
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consider the aforesaid application of the petitioner for
regularization along with the show cause reply of the petitioner
such that entire dispute is decided and the petitioner may also
have a clarity about the fate of its unit . The decision which is
to be taken by the Union of India be brought on record by
either of the parties by filing supplementary affidavit latest
by 25.09.2018.
13. I.A. No. 7610 of 2018 and I.A No. 7613 OF 2018 are
hereby disposed of.
14. It is made clear that this court has not gone into the merits
of the claim of the petitioner and it will be open to the
respondent no 3 to take decision as per law."
58. By the aforesaid order dated 25th August 2018, the High Court
directed MoEF to take a decision on the application of the Appellant for
EC as also a decision regarding violation by the Appellant of the provisions
of EC by encroachment upon forest land by shifting the location of the
plant.
59. On 31st August 2018, MoEF&CC issued a show cause notice
No. F.No.J-11011/137/2006-1A Pt.II (i) dated 31st August 2018 to the
Appellant for violating the provisions of the EC by shifting the location
of its plant and encroaching upon forest land.
60. The Respondent No.1 was also accorded personal hearing on
10th September 2018. On 12th September 2018 Mr. Gyanesh Bharti who
presided over the personal hearing was transferred from MoEF&CC.
61. On 20th September 2018 the Respondent No.1 issued an order
bearing No.F.No.J-11011/137/2006-IA.II(I) revoking the EC of the
Appellant on the ground that the Appellant had encroached upon 220
acres of forest land and had shifted the location of its plant from Parbatpur
to Bhagabandh, violating the conditions stipulated in the EC.
62. The Appellant filed Writ petition being W.P.